Supreme Court: Health Care Mystery Unveiled

Dressed in their black robes, the nine Supreme Court justices will emerge from behind regal red curtains this morning at 10 a.m. to solve one of Washington's biggest mysteries: the legal fate of the Affordable Care Act.

Until today, the Supreme Court justices and their clerks have kept their opinion in this case a secret, frustrating politicians and pundits who are confounded by a government branch that doesn't leak.

Even Justice Ruth Bader Ginsburg made fun of the frenzy a couple of weeks ago in a speech: "At the Supreme Court, those who know don't talk and those who talk don't know," she said, quoting a news story. But then she set off a new flurry of speculation when she noted that some of the most controversial cases in the term had yet to be decided. "It is likely that the sharp disagreement rate will go up next week," she said.

She was stating the obvious--the most controversial cases of the term are often the last to be decided. But court watchers parsed every word she said trying to discern her mood. Was that a twinkle in her eye?

Today, the majestic courtroom will be filled with lawyers, congressmen, health care advocates and members of public interest groups. There will be no Blackberrys, smart phones, cameras or videos. Audio of the proceedings will only be released next fall at the start of the next term. Solicitor General Donald B. Verrilli Jr., who argued the case for the government, will more than likely be in the audience, as will some of the lawyers who represented the 26 states challenging the law.

Two benches will be reserved for some of the media, who will be armed only with pen and paper.

At precisely 10 a.m. Chief Justice John Roberts will announce the first of three cases expected to be released. (Besides health care, the court will render a decision on a real estate case as well as a case dealing with military honors.) The justice who wrote the opinion will begin reading a synopsis, and then if there is a dissent, that too might be read from the bench. It's expected that those two decisions will be read before the health care decision.

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One floor down, the press room--with piped-in audio from the court--will overflow with court reporters and health care bloggers. As soon as a decision is announced, press officers in the room will hand out written copies of the case. Runners will be poised to race out as soon as they get a copy of the decision to network correspondents who will be wired up and ready to decipher the decision on live television. Even in the press room Blackberry and cellphone usage is restricted.

But what format will the health care decision take? Conceivably, the court could release four separate decisions. Remember, the Supreme Court dedicated over six hours of oral arguments to four distinct issues regarding the law. The first issue is whether a federal tax law bars a challenge to the mandate until after it goes into effect. The second is the individual mandate that requires almost every American to buy health insurance by 2014 or pay a penalty. If the court strikes down the mandate (the third issue argued), it will need to decide the fate of the rest of the 975-page law (fourth issue). It will also consider the law's expansion of Medicaid.

The conventional wisdom is that the Justices will most likely release one or possibly two opinions that cover the issues.

It is widely believed that the main opinion will be authored or at least co-authored by Chief Justice John Roberts. When the Chief Justice is in the majority he has the power to assign an opinion.

"In a case that is so important and so historic, I think he will want to make sure it is written in a way that can maintain a five-member majority and be as clear as possible on the legal principles," says Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, a fierce opponent of the law. She believes the chief justice will write to strike down the mandate, but she says that even if the court upholds the mandate, "Roberts could possibly write an extremely narrow opinion to try to limit the damage."

Might the court dodge the main issue, that of the mandate? At oral arguments the justices did not seem to indicate that they thought the challenge to the law was premature. The conventional wisdom is that the court will get to the core of the issue and decide whether Congress exceeded its authority under the Commerce Clause, or the Necessary and Proper Clause of the Constitution when it mandated that most every individual buy health insurance by 2014.

But some lawyers and scholars have floated other ways the court might rule.

A year ago, Walter Dellinger, former acting solicitor general of the Clinton administration, predicted the individual mandate would be upheld. "Maybe 7-2," he said at the time.

But in a recent Slate article Dellinger says that oral arguments changed his mind. He said the government was subjected to questions that were hostile "often bordering on heckling" by the conservative justices.

He thinks the justices might come up with a "middle way" of resolving the case. According to Dellinger, the court would in essence divide the minimum coverage provision into the "mandate" and the "penalty." Strike down the mandate, but uphold the penalty. "The provision stating that everyone must obtain coverage" would be deemed unconstitutional, but the "linked provision imposing modest financial incentives to have coverage is acceptable and can stand."

"The practical effect would be to uphold all the provisions of the Affordable Care Act, while firmly planting a liberty flag that would limit future Congresses."

Dellinger's predictions set off a buzz in Washington among constitutional scholars who have found themselves with a lot of time on their hands waiting for the health care decision to come down.

Jack M. Balkin of Yale Law School believes the court will decide the issue on a secondary argument the government has put forward: the taxing power. "The individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government's health care program and families who wish to purchase health insurance," he wrote in the New York Times.

But Severino does not think the court will rule in an unexpected way.

"This case is about the Commerce Clause and the constitutional limits on government. The court knows that, and that is the grounds on which it will rule. "

When the Justices are finished reading all opinions, Pamela Talkin, the marshal of the court, will announce the summer recess, and the debate will pour outside of the hallowed chambers onto the white marble Supreme Court steps. Public interest groups, protesters and lawyers have sent word that they will gather for waiting cameras.

And although the debate will continue, the justices' job will be done. Many of them have immediate plans to travel abroad to teach courses this summer in locations such as Malta, Florence and Austria, far from the clamor caused by their opinion.